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Congressional Research Service 7-5700 www.crs.gov RS21421 Summary Mountaintop removal mining involves removing the top of a mountain in order to recover the coal seams contained there. This practice occurs in six Appalachian states (Kentucky, West Virginia, Virginia, Tennessee, Pennsylvania, and Ohio). It creates an immense quantity of excess spoil (dirt and rock that previously composed the mountaintop), which is typically placed in valley fills on the sides of the former mountains, burying streams that flow through the valleys. Mountaintop removal mining is regulated under several laws, including the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA). Critics say that, as a result of valley fills from mountaintop removal mining, stream water quality and the aquatic and wildlife habitat that streams support are destroyed by tons of rocks and dirt. The mining industry argues that mountaintop removal mining is essential to conducting surface coal mining in Appalachia and that it would not be economically feasible there if operators were barred from using valleys for the disposal of mining overburden. Critics have used litigation to challenge the practice. Environmental groups have been successful at the federal district court level in challenging some permits for mountaintop removal mining projects, only to be later overturned on appeal. Nonetheless, the criticisms have prompted some regulatory changes. In 2009, officials of the Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Corps), and the Department of the Interior signed a Memorandum of Understanding outlining a series of administrative actions under these laws to reduce the harmful environmental impacts of surface coal mining in Appalachia. The plan included a series of actions that emphasize specific steps, improved coordination, and greater transparency of decisions to be implemented through regulatory proposals, guidance documents, and review of applications for permits to authorize surface coal mining operations in Appalachia. Viewed broadly, the Administration's combined actions displease both industry and environmental advocates. The additional scrutiny of permits and more stringent requirements have angered the coal industry and many of its supporters. Controversy also was generated by EPA's 2011 veto of a CWA permit that had been issued by the Corps for a surface coal mining project in West Virginia. At the same time, while environmental groups support EPA's steps to restrict the practice, many favor tougher requirements or even total rejection of mountaintop removal mining in Appalachia. The enhanced permit review procedures and EPA guidance on factors used in evaluating water quality impacts of Appalachian surface mining permits were challenged in court, but they were upheld by a federal appellate court. EPA's veto of the West Virginia mine permit was overturned by a federal court, but that ruling was reversed on appeal and the Supreme Court declined to review the case. Several bills to clarify and restrict EPA's veto authority were introduced in the 113th Congress. Legislation to restrict EPA's veto authority also has been introduced in the 114th Congress (S. 55/S. 234, H.R. 896, and H.R. 1203). This report provides background on regulatory requirements, controversies and legal challenges to mountaintop removal mining, and recent Administration actions, including a Stream Protection Rule proposed by the Office of Surface Mining on July 16, 2015. Attention to EPA's veto of the West Virginia mining permit and other federal agency actions has increased in Congress. Congressional interest in these issues is discussed, including legislation seeking to restrict the practice of mountaintop removal mining and other legislation intended to block the Obama Administration's regulatory actions. Contents What Is Mountaintop Removal Mining? 1 Regulatory Setting 2 Criticism and Legal Challenges to Mountaintop Removal Mining 4 The "Fill Material" Rule 5 OSM's 2008 Stream Buffer Zone Rule 6 Other Litigation 7 Administrative Actions 8 The Enhanced Coordination Process (ECP) 9 Revising the Stream Buffer Zone Rule 10 Nationwide Permit 21 11 EPA Guidance on Permitting 12 EPA's Veto of a Mountaintop Removal Mining Permit 15 Congressional Actions 16 Contacts Author Contact Information 18 What Is Mountaintop Removal Mining? The environmental, economic, and societal impacts of the surface mining practice termed mountaintop removal mining have attracted considerable attention. This type of surface mining occurs in an area of approximately 12 million acres located in portions of Kentucky, West Virginia, Virginia, Tennessee, Pennsylvania, and Ohio. As its name suggests, mountaintop removal mining involves removing the top of a mountain in order to recover the coal seams contained in the mountain. Explosives are used to break the mountain's rock, and massive earth-moving equipment, often including equipment called draglines, removes the spoil (i.e., the dirt and rock that composed the mountaintop over or between the coal seams). While federal law calls for excess spoil to be placed back in the mined areas—returning the lands to their approximate original contour (AOC)—that result ordinarily cannot be accomplished with mountaintop removal mining because broken rock takes up more volume than did the rock prior to mining and because there are stability concerns with the spoil pile. Mountaintop removal creates an immense quantity of excess spoil, which is typically placed in valley fills on the sides of the former mountains. One consequence is that streams flowing through the valleys are buried. All types of surface and underground coal mining in Appalachia generate excess spoil fills due to the increased volume of broken rock, limitations on the steepness and height to which broken rock may be placed to achieve a stable slope, and the steep topography of the region. Large mines may be surrounded by several valley fills. Depending on the local topography and the profile of those valleys, a single fill may be over 1,000 feet wide and over a mile long. While mountaintop removal mining has been practiced in some form since the 1960s, it became a prevalent coal mining technique in parts of central Appalachia during the 1990s for several reasons. First, as the demand for electricity increased, so has the demand for the relatively clean-burning, low-sulfur coal found in Appalachia. Second, coal supplies near the surface have been significantly depleted. Third is the development of large surface mining equipment (draglines) capable of moving over 100 cubic yards of earth in a single scoop. Recent data from the U.S. Energy Information Administration (EIA) indicate that the amount of coal produced at mines with mountaintop removal mining permits in Central Appalachia has decreased by 62% since 2008, declining from about 53.2 million short tons in 2008 to approximately 20.2 million short tons in 2014. The number of mountaintop removal permits has decreased by 37%, from 51 active permits in 2008 to 32 in 2014. Analysis of the EIA data shows different trends in different states. Mountaintop removal coal mining declined in West Virginia and Kentucky by 60% and 75%, respectively, during the 2008-2014 period, while production at mountaintop removal mines in Virginia increased by 24%. For many years, excess spoil from coal mining was generally placed in the extreme headwaters of streams, affecting primarily ephemeral streams that flow intermittently only in direct response to precipitation in the immediate watershed. Because smaller upstream disposal sites are exhausted and because of the increase in mountaintop removal mining activity, today the volume of a single stream fill can be as much as 250 million cubic yards. As a result, streams are eliminated, stream chemistry is harmed by pollutants in the mining overburden, and downstream aquatic life is impaired. EPA estimates that since 1992 almost 1,200 miles of Appalachian streams were buried by surface coal mining practices. The cumulative effects of such surface coal mining operations include deforestation, which has been linked to harm in aquatic communities; accelerated sediment and nutrient transport; and increased algal production, as well as possible human health impacts. Regulatory Setting Regulation of valley fills associated with mountaintop removal mining is primarily under the authority of two federal statutes, the Surface Mining Control and Reclamation Act (SMCRA, 30 U.S.C. §1201) and the Clean Water Act (CWA, 33 U.S.C. §1252), and involves several federal and state agencies. The two laws provide for separate regulatory programs with different purposes and different permitting requirements and procedures. For example, the CWA focuses primarily on regulating discharges into waters of the United States, while SMCRA regulates a broad range of environmental and other impacts of surface coal mining and reclamation operations. SMCRA addresses the necessary approvals for surface mining operations, as well as inspection and enforcement of mine sites until reclamation responsibilities are completed and all performance bonds are released. SMCRA permits may be issued by the Office of Surface Mining, Reclamation and Enforcement (OSM), U.S. Department of the Interior, or by qualified states, only if it has been shown that the proposed mining activities will satisfy general performance standards applicable to all surface coal mining operations. Among those standards, SMCRA addresses disturbances at the mine site and in associated offsite areas, as well as the quality and quantity of water in surface and ground water systems both during and after surface coal mining operations. While SMCRA generally requires that surface-mined areas be reclaimed so that they closely resemble the general surface configuration of the land prior to mining (i.e., AOC), the law and OSM regulations allow a variance from AOC for mountaintop removal mining operations under certain conditions. The CWA prohibits the discharge of any pollutant from any point source into the waters of the United States, except in compliance with a permit issued under one of the two permit programs established by the statute. The two permit programs are the National Pollutant Discharge Elimination System (NPDES) program, administered by the Environmental Protection Agency (EPA) under CWA Section 402, and the dredge and fill permit program administered by the U.S. Army Corps of Engineers (Corps) under CWA Section 404. Mountaintop removal mining and other surface coal mining operations typically require both types of permits—a Section 404 permit for the discharge of mining overburden into waters of the United States, and a Section 402 permit for discharges from sediment ponds, on-site coal preparation facilities, and stormwater discharges from the mine site. The two permit programs employ different regulatory approaches and criteria. The NPDES program focuses primarily (but not exclusively) on discharges from industrial operations and sewage treatment plants. Section 402 permits must include limitations on the quantities, rates, and concentrations of pollutants, called effluent limitations, that reflect treatment with available pollution control technology and any more stringent limitations necessary to meet state-established water quality standards for the receiving water. The standard for issuance of a Section 402 permit is compliance with pollutant limitation and control provisions in the CWA. The Corps and EPA have complementary roles in implementing the Section 404 permit program. Under Section 404, the Corps issues permits for the discharge of dredged or fill material, using a set of environmental guidelines promulgated by EPA in conjunction with the Corps. These guidelines are intended to provide a comprehensive means of evaluating whether any discharge of fill is environmentally acceptable. The standard for issuance of a 404 permit is consideration of the full public interest by balancing the favorable impacts of a proposed activity against the detrimental impacts to reflect the national concerns for both the protection and utilization of important resources. This balancing test of probable impacts involves many factors, including conservation, economics, flood hazards, land use, navigation, energy and mineral needs, and, in general, the needs and welfare of the people. The Corps has considerable discretion, and the weight of each factor changes with each permit application, depending on the factor's importance and relevance to the particular proposal. However, a discharge is categorically prohibited if it would significantly degrade water quality. In addition, no discharge may be allowed if there is a less environmentally damaging practicable alternative. Where there is no other alternative, the discharge may be allowed if the applicant has taken all practicable steps to minimize the amount of material discharged and to compensate for unavoidable impacts through mitigation. Section 404 permits consist of two basic types: Individual permits for a particular site and nationwide (general) permits for categories of discharges that are similar in nature and have no more than minimal adverse impacts, individually and cumulatively, on the waters of the United States. If the discharge may have more than minimal impacts, an individual permit is required. Nationwide permits cover approximately 74,000 activities annually (about 90% of total Corps permits) and involve less regulatory burden and time than authorization by individual permits. Disposal of excess overburden associated with mountaintop removal mining has generally been permitted under Nationwide Permit 21 (NWP 21), which authorizes discharges from surface coal mining activities that result in no more than minimal impacts (site-specifically and cumulatively) to the aquatic environment. The use of NWP 21 in conjunction with mountaintop removal mining in the Appalachian region has been controversial and has been challenged in litigation. The Obama Administration recently added new environmental restrictions on the use of NWP21 generally, while permanently prohibiting its use to authorize discharges to construct valleys fills, such as occurs in the Appalachian region (these developments are discussed below). The U.S. Fish and Wildlife Service (FWS) also has responsibilities relevant to mountaintop removal mining. FWS implements and enforces the Endangered Species Act (35 U.S.C. §1531) and the Fish and Wildlife Coordination Act (16 U.S.C. §661), and under both laws, agencies proposing projects affecting U.S. waters are required to consult with FWS to ensure that fish and wildlife conservation and impacts on threatened or endangered species are considered. Coordination with FWS is required for both SMCRA and CWA permits. Criticism and Legal Challenges to Mountaintop Removal Mining Because of the increase in valley fill disposal of mountaintop removal mining overburden in areas of Appalachia, the practice has drawn public attention and criticism. Critics say that, as a result of valley fills, streams and the aquatic and wildlife habitat that they support are destroyed by tons of rocks and dirt. Flow regimes are altered, increasing the likelihood and severity of floods, and the water quality downstream from fills also is significantly degraded. In addition, mountaintop removal can crack the walls and foundations of nearby homes; cause dust, noise, and vibration from blasting; collapse drinking water wells; and destroy nearby streams for fishing, hiking, swimming, or aesthetic pleasure. It also has forced the relocation of whole communities. Environmental groups argue that the practice of authorizing valley fills under Section 404 is unlawful because mining overburden is waste material which pollutes and destroys waterways, and impacts are far more than minimal, which is the standard for coverage by a nationwide permit. The mining industry argues that mountaintop removal mining is essential to conducting surface coal mining in Appalachia. The poor stability of the soil surrounding coal deposits in this region makes it impossible to mine the coal using underground mining techniques. Waste disposal in valley fills is a necessary part of that activity because of the steep topography of the region, and they assert that mountaintop removal mining would not be economic or feasible if producers were restricted from using valleys for the disposal of mining overburden. Requiring Section 402 permits for these activities would effectively prohibit a broad range of mining which has been allowed by long-standing practice, they say. Critics have been using litigation to challenge the practice. In a number of cases discussed here, environmental groups have been successful at the federal district court level in challenging issuance of permits for mountaintop removal mining projects, but each has been later overturned on appeal. Nonetheless, the criticisms also have prompted some regulatory changes, also discussed below. In 1998, a West Virginia citizen group sued the state of West Virginia and the Corps for failure to prevent or enforce against environmental violations caused by mountaintop removal practices. The principal claim under SMCRA was that the state was failing to enforce OSM's 1983 buffer zone rule, which protects intermittent and perennial streams from disturbance by coal mining activities. In addition, the lawsuit asserted that the Corps had been granting permits that allowed disposal of waste in waters of the United States through permits under the nationwide permit program that have greater than minimal adverse effects, individually and cumulatively, which plaintiffs argued is contrary to the CWA. Some of the claims were settled when the federal agencies agreed to complete a Programmatic Environmental Impact Statement (PEIS) on the effects of mountaintop removal mining. The Corps also agreed that proposed valley fills in West Virginia in watersheds of at least 250 acres must be permitted by individual, not nationwide, permits. The remaining claims were addressed in a 1999 ruling which held that disposal of mining spoil in valley streams violates federal and state mining rules and the CWA. Under the ruling, mining spoil was reclassified from "dredge and fill material," requiring a CWA Section 404 permit, to "waste material" that is subject to CWA Section 402 permit requirements, thus raising the regulatory hurdles for disposing of mining waste. Upon appeal, the district court ruling was overturned in a decision that dealt with jurisdiction and state sovereignty issues. The court held that the stream buffer regulation at issue was, in fact, a matter of state law, not federal law and, thus, the case should not have been brought in federal court. The Clinton Administration had sided with the industry by appealing the district court's finding that mountaintop removal mining must be regulated under CWA Section 402, but it concurred with the related finding, supported by environmental groups, that the activity violates stream buffer zone requirements under SMCRA. In 2002, the Supreme Court declined to hear a challenge to the Fourth Circuit decision. In 2005, the Corps, EPA, and other federal agencies released a final PEIS on the impacts of mountaintop removal mining and valley fills, as promised in the 1999 partial settlement of Bragg. It identified three alternatives for improving coordination of regulatory efforts to limit the negative impacts of mountaintop removal mining. Under the preferred alternative, OSM, the Corps, EPA, and state agencies would determine the size, number, and location of valley fills for a proposed operation, under a joint permit application integrating the CWA and SMCRA programs. The Corps would make case-by-case determinations whether a project would be covered under NWP 21 or under an individual Section 404 permit. More than 70,000 public comments were submitted on the draft PEIS. Industry groups favored continued use of general permit authorizations, while environmental groups said that the preferred alternative failed to place adequate limits on mountaintop removal mining and valley filling. A number of comments were critical that all of the alternatives were process alternatives, and none would minimize the environmental impacts from valley fills. The agencies responded that the alternatives were appropriate for a programmatic EIS and that they would provide increased environmental protection. The agencies also said that a number of changes to agency rules, policy, and guidelines would follow. The "Fill Material" Rule Controversies also arose following a proposal by EPA and the Corps in 2000 to revise a portion of the regulations that implement CWA Section 404. The agencies proposed to redefine the terms "fill material" and "discharge of fill material." One result of the proposal would be regulatory definitions more consistent with the Administration's position in the then-ongoing Bragg litigation, namely its view that regulating mountaintop removal mining under CWA Section 404 is not inconsistent with that act. This proposal was not finalized before the Clinton Administration left office but was finalized in May 2002 by the Bush Administration, substantially as proposed in 2000. The revision was intended to clarify the regulatory definition of fill material—which determines whether the activity is subject to Section 404 permit requirements or more stringent Section 402 requirements—by replacing two separate and inconsistent definitions with a single, common definition to conform with long-standing Corps and EPA practice in regulating surface mining activities. According to the Clinton and Bush Administrations, the previous definitional differences had led to considerable confusion, as reflected in part in the Bragg and other lawsuits, but the changes were not driven solely by concerns over regulating mountaintop removal mining practices. Environmental groups continue to contend that the disposal practice is unlawful under the Clean Water Act, and that the revised EPA and Corps rules allow for inadequate regulation of disposal activities, including coal mining waste. Following issuance of the revised rule, the Senate Environment and Public Works Committee held an oversight hearing in the 107th Congress to examine the rule, receiving testimony from Administration, mining industry, and public witnesses. Legislation intended to reverse the 2002 rule has been introduced in Congress since then (see "Congressional Actions" below). OSM's 2008 Stream Buffer Zone Rule The 2003 draft PEIS called for OSM to make changes to its stream buffer zone rule to improve consistency with the Clean Water Act, and OSM proposed changes to that rule in 2004. However, OSM subsequently decided to prepare a new PEIS and to draft a revised rule, both of which were released in 2007. OSM issued a final revised buffer zone rule in December 2008. As described by OSM, the final rule required that surface coal mining operations be designed to minimize the amount of spoil placed outside the mined-out area, thus minimizing the amount of land disturbed. It also required that, to the extent possible, surface coal mining and reclamation operations be designed to avoid disturbance of perennial or intermittent streams and the surface of lands within 100 feet of those streams. If avoidance is not reasonably possible, the rule required that the permit applicant develop and analyze a range of reasonably possible alternatives and select the one that would have the least overall adverse impact on fish, wildlife, and related environmental values. According to OSM, the final rule did not mandate avoiding placement of coal mine waste in or within 100 feet of perennial or intermittent streams in all cases, because "there is sometimes no viable alternative to the construction of coal mine waste disposal facilities in perennial or intermittent streams and their buffer zones, in which case avoidance is not reasonably possible." The 2008 revised rule eliminated the provision in the 1983 stream buffer zone rule that had required a finding that the proposed activity would not cause or contribute to a violation of state or federal water quality standards. In doing so, OSM said that the previous language more closely resembled the CWA than the underlying provisions of SMCRA. Because the SMCRA rule did not substitute for or supersede the CWA, mine operators still must comply with the requirements of that law. Both industry and environmental groups said that the final rule did little to change the existing practice of disposing excess mountaintop removal mining spoil into valleys and streams. In fact, OSM stated that a key purpose of the rule was to reduce confusion about the 1983 rule and to conform the regulation to historic practice of federal and state authorities. Environmental groups said that the final rule would actually reduce environmental protection for streams by making it easier for coal mine operators to obtain exemptions from the stream buffer zone requirement, thus increasing destructive mining activities in and around streams; a coalition of these groups filed a lawsuit challenging the rule. In 2009 the Obama Administration requested that the federal court hearing this case vacate the 2008 stream buffer zone rule and remand it to the department, in order to return immediately to the more stringent 1983 rule until a replacement rule can be adopted. The Administration argued that the 2008 rule did not adequately protect water quality and stream habitat. The court rejected the Administration's request, leaving the 2008 rule in place. However, litigation over the rule continued. In February 2014, the same federal court ruled that the 2008 rule had been issued without necessary consultation with federal wildlife agencies (under the Endangered Species Act). The court vacated the 2008 rule, which has been under review by OSM for modification since 2009, and in December 2014, OSM withdrew it. Withdrawal of the rule was expected to have little impact, because most states did not implement it due to the litigation, but controversies over OSM's revisions continued (see discussion below, "Revising the Stream Buffer Zone Rule"). Other Litigation In other litigation challenging authorization of a specific mountaintop removal mining operation in Kentucky (rather than the general practice), a federal district court ruled in 2002 that the disposal of waste from mountaintop removal mining into U.S. waters is not allowed under Section 404, and the court permanently enjoined the Corps from issuing Section 404 permits for the disposal of mountaintop removal mining overburden where the purpose is solely to dispose of waste. In January 2003, a federal court of appeals ruled that the district court's action was too broad and lifted the injunction prohibiting the Corps from issuing Section 404 permits for disposal of mountaintop removal mining waste. In 2007, individual permits for four mountaintop removal mining operations in West Virginia were overturned by a federal district court. The court found that the probable impacts of the valley fills would be significant and adverse, that the mitigation plans for each permit were not sufficient to compensate for those adverse impacts, and that the Corps inadequately evaluated the cumulative impacts of the projects. The Corps appealed the court's orders, and in February 2009, the court of appeals reversed and vacated the district court's actions. The court found that the Corps had not acted arbitrarily or capriciously in its evaluation of the projects' impacts, and it found the Corps' proposed mitigation plans sufficient for purposes of complying with the National Environmental Policy Act (NEPA). One judge on the panel wrote in dissent that in his view the Corps had failed to establish that the projects will have no significant adverse environmental impact, and thus the agency had not satisfied the requirements of NEPA. While this case was pending, uncertainty over its outcome had effectively blocked the Corps from issuing Section 404 permits in Appalachia. Thus, the ruling by the court of appeals allowed for resumption of permitting activities in the region. Environmental advocacy groups have continued to pursue legal challenges to permits for individual surface coal mining projects in Appalachia, especially for mines located in West Virginia and Kentucky. Since 2003, citizen groups also have filed lawsuits seeking generally to halt the Corps' use of Nationwide Permit 21 for mountaintop removal mining operations. In one such case, a federal district court ruled that NWP 21 violates the Clean Water Act by authorizing activities that have more than minimal adverse environmental effects. The court enjoined the Corps from using NWP 21 to authorize new mountaintop removal mining in southern West Virginia and ordered the Corps to revoke previous authorization for 11 operations. On appeal, the judgment of the district court and the injunction against NWP 21 were vacated when the court of appeals found that the Corps had complied with the Clean Water Act when it promulgated NWP 21. In another case, a U.S. district court ruled that, when the Corps issued NWP 21, its analysis of cumulative impacts was inadequate and its reliance on compensatory mitigation in determining the environmental impacts of valley fills was arbitrary and capricious. The court again enjoined the Corps from using NWP 21 to authorize mountaintop removal mining activities in the Southern District of West Virginia. The decision requires that mining operations operating under NWP 21 be halted in West Virginia and Kentucky, but mining companies can seek individual permits from the Corps or appeal the decision. A Kentucky court disagreed with the district court's ruling in 2011 and allowed its continued use in that state. A federal appeals court overturned the Kentucky court's 2011 ruling and invalidated the use of NWP 21, finding that the Corps' environmental review procedures for NWP 21 were inadequate. Although this ruling dealt with the text of NWP 21 as issued in 2007 (which was re-issued with additional protections in 2012), environmental groups applauded the court's criticism of the Corps' actions. As described next, in 2009, the Obama Administration announced a series of administrative actions regarding surface coal mining operations in Appalachia, including use of Nationwide Permit 21. Administrative Actions The Obama Administration has joined the debate over mountaintop removal mining. Early in 2009, EPA began reviewing CWA Section 404 permit applications for surface coal mining operations in the Appalachian states, many of which had been on hold for months in light of the litigation on which the U.S. Court of Appeals for the Fourth Circuit ruled in February 2009, Ohio Valley Environmental Coalition v. Aracoma Coal (see above, "Other Litigation"). Following that ruling, EPA Administrator Lisa Jackson announced that, under its CWA authority to comment on 404 permit applications pending at the Corps and its authority to oversee issuance of Section 402 permits by states, EPA would review pending surface coal mining permit requests in Appalachia to ensure protection of the environment. On June 11, 2009, officials of EPA, the Corps, and the Department of the Interior signed a Memorandum of Understanding (MOU) and Interagency Action Plan (IAP) outlining a series of administrative actions to reduce the harmful environmental impacts of surface coal mining in Appalachia. The plan includes a series of near-term and longer-term actions that emphasize specific steps, improved coordination, and greater transparency of decisions. Many of the Administration's actions have been highly controversial, resulting in substantial congressional criticism. Some have been challenged successfully in court by industry companies and groups, and other legal challenges continue. The Enhanced Coordination Process (ECP) Also on June 11, 2009, EPA and the Corps signed a specific agreement detailing criteria to be used to coordinate and expedite review of pending permit applications for surface coal mining operations in Appalachia (including but not limited to mountaintop removal mining projects). Based on its author